




& 






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Class IK 5 £.6? 

Book __ 



, 



BEFORE THE 



Commission for Counting Presidential Totes 



STATES WHERE THERE ARE MORE THAN ONE RETURN 
FROM THE ELECTORAL COLLEGES, 



,f\ 



1877. 




In the Matter of the Counting of the Votes given by the 
Electoral College of Louisiana. 

MATT H. CARPENTER, 

Of Counsel. 



McQill & Wither ow, Printers, Washington, D. C. 






\ 



BEFORE THE 



COMMISSION FOR COUNTING PRESIDENTIAL VOTES 



STATES WHERE THERE ARE MORE THAN ONE RETURN 
FROM THE ELECTORAL COLLEGES, 



1877. 



In the Matter of the Counting of the Votes Given by the 
Electoral College of Louisiana. 



Constitution of the United Stattes. 

The Constitution, article 2, section 1, provides that the 
President shall be elected as follows: 

" Each State shall appoint, in such manner as the Legislature 
thereof may direct, a number of electors equal to the whole 
number of Senators and Representatives to which the 
State may be entitled in the Congress; but no Senator or 
Representative, or person holding an office of trust or 
profit under the United States, shall be appointed an 
elector." 

Amendments, article 12, provides as follows: 

"The electors shall meet in their respective States, and 
vote by ballot for President and Vice-President, one of 
whom, at least, shall not be an inhabitant of the same 
State with themselves; they shall name in their ballots the 
person voted for as President, and in distinct ballots the 
person voted for as Vice-President; and they shall make 
distinct lists of all persons voted for as President, and of 



all persons voted for as Vice-President, and of the number 
of votes for each, which lists they shall sign and certify, 
and transmit sealed to the seat of the Government of the 
United States, directed to the President of the Senate; 
the President of the Senate shall, in the presence of the 
Senate and House of Representatives, open all the certificates, 
and the votes shall then be counted. The person having the 
greatest number of votes for President shall be the Presi- 
dent, if such number be a majority of the whole number of 
electors appointed." 

Acts of Conqkess. 

Congress has provided (Rev. Stats., p. 21, sec. 131) 
that " the electors of President and Vice-President shall be 
appointed in each State on the Tuesday next after the first 
Monday in November, in every fourth year," &c. 

Sec. 133. "Each State may by law provide for the fill- 
ing of any vacancies which may occur in its college of 
electors, when such college meets to give its electoral 
vote." 

Sec. 134. " Whenever any State has held an election for 
the purpose of choosing electors, and has failed to make a 
choice on the day prescribed by law, the electors may be 
appointed on a subsequent day in such manner as the legis- 
lature of such State may direct." 

Sec 135. "The electors for each State shall meet and 
give their votes upon the first Wednesday in December in 
the year in which they are appointed, at such place in such 
State as the Legislature of such State shall direct/' 

^Sec. 136. "It shall be the duty of the executive of each 
State to cause three lists of the names of the electors of such 
State to be made and certified, and to be delivered to the 
electors on or before the day on which they are required, 
by the preceding section, to meet." 

Sec. 142. " Congress shall be in session on the second 
Wednesday in February succeeding every meeting of the 
electors, and the certificates, or so many of them as have 
been received, shall then be opened, the votes counted, and 
the persons to fill the offices of President and Vice Presi- 
dent ascertained and declared, agreeably to the Constitu- 
tion." 



Laws of Louisiana. 

The Legislature of the State of Louisiana, Oct. 19, 1868, 
(Laws 1868, p. 218), passed a general election law for the 
election of Governor, Lieutenant governor, members of the 
Legislature and other State and parish officers. 

Sec. 32 of that act is as follows (page 223.) 

Sec. 32. " Be it farther enacted, etc., That in every year 
in which an election shall be held for electors of President 
and Yice President of the United States, such election shall 
be held on the Tuesday next after the first Monday in 
the month of November, in accordance with an act of the 
Congress of the United States, approved January twenty- 
three, one thousand eight hundred and forty-five, entitled 
"An act to establish a uniform time for holding elections 
for electors of President and Vice President in all States 
of the Union." And such elections shall be held and con- 
ducted in the manner and form provided by law for general 
State elections." 

Sec. 33. u Be it further enacted, etc., That the foregoing 
provisions, except as to time and place of holding elec- 
tions, shall apply to the election of all officers whose elec- 
tion is not otherwise provided for." 

Eleven days afterwards, Oct. 30, 1868, the Legislature 
proceeded to, and " otherwise provided for " the election of 
Presidential electors, thus taking that election out of the 
operation of the General Election Law. The latter act is 
a complete regulation of Presidential electors, and is as 
follows : 

No. 193.— An Act Kelative to Presidential Electors. 

•'Section 1. Be it enacted by the Senate and House of 
Representatives of the State of Louisiana in General Assem- 
bly convened, That in every year in which an election is to 
be held for electors of President and Vice President of the 
United States, such election shall be held on Tuesday next 
after the first Monday in the month of November in such 
year in accordance with an act of the Congress of the 
United States approved January twenty-three, eighteen 
hundred and forty-five, entitled, ' An act to establish a 
uniform time for holding elections for electors of President 



™ 



and Vice President in all of the States of the Union,' and 
such elections shall he held and conducted in the manner 
and form provided by law for general State elections." 

il Sec. 2. Be it further enacted, etc., T hat every qualified 
voter in the State shall vote for seven persons as follows : 
" Two persons shall he selected from the State at large, 
and one person shall he chosen from each congressional 
district in this State ; and in case any ticket shall contain 
two or more names of persons residing in the same district 
(except the two chosen from the State at large) the first of 
such names only shall he considered as duly voted for." 

" Sec. 3, Be it further enacted, etc., That no person shall 
be an elector who is not a qualified voter in the district for 
which he is chosen, or in case of being elected for the State 
at large, then of some parish of the State. 

" Sec. 4. Be it further enacted, etc., That immediately after 
the receipt of a return from each parish, or on the fourth 
Monday of November, if the returns shall not sooner arrive, 
the Governor, in presence of the Secretary of State, the At- 
torney General, a district judge of the district in which 
the seat of government may be established, or an}' two of 
them, shall examine the returns and ascertain therefrom 
the several persons who have been dul t y elected electors. 

"Sec. 5. Be it further enacted, etc., That one of the re- 
turns from each parish, indorsed by the Governor, shall be 
placed on file and preserved among the archives of the 
Secretary of State, 

"Sec. 6. Be it further enacted, etc., That the names of the 
persons selected, together with a copy of the returns from 
the several parishes, shall forthwith be published in the 
newspaper or papers in which the laws of the State may be 
directed to be published. 

" Sec 7. Be it further enacted, etc., That the electors shall 
meet at the seat of government on the day appointed for 
their meeting by the act of Congress, (the first Wednesday 
in December,) and shall then and there proceed to execute 
the duties and services enjoined upon them by the Consti- 
tution of the United States, in the manner therein pre- 
scribed. 

"Sec. 8. Be it further enacted, etc., That if any one or 
more of the electors chosen by the people shall fail from 
any cause whatever, to appear at the appointed place at the 



hour of four p. m. of the day prescribed for their meeting, 
it shall be the duty of the other electors immediately to 
proceed by ballot to supply such vacancy or vacancies. 

" Sec. 9. Be it further enacted, etc., That each elector shall 
receive the same daily compensation and allowance which 
at that time shall be allowed by law to the members of the 
General Assembly, to be paid by the Treasurer of the 
State on warrants signed by the Governor. 

"Sec. 10. Be it further enacted, etc., That all laws con- 
flicting herewith be, and the same are hereby, repealed; 
that this act shall take effect from and after its passage." 

The Act of 1870. 

March 16, 1870, the Legislature passed another election 
law. Laws of 1870, p, 145-161. 

Section 35, page 150 of this act, reads as follows: 

" Sec. 35. Be it further enacted, etc., That in every year 
in which an election shall be held for the electors of Presi- 
dent and Vice-President of the Uuited States, such election 
shall be held on the Tuesday next after the first Mon- 
day in the month of November, in accordance with the 
act of the Congress of the United States approved Jan- 
uary twenty-third, one thousand eight hundred and forty- 
five entitled 'An act to establish a uniform time for 
holding election for electors of President and Vice- 
President in all States of the Union/ and such election 
shall be held and conducted and returns made thereof 
in the manner and form prescribed by law for the general 
elections." 

Section 38 of this act is as follows: 

" Sec. 38. Be it further enacted, etc., That the provisions of 
this act, except as to the time of holding elections, shall 
apply in the election of all officers whose election is not 
otherwise provided for." 

The last section of said act is as follows: 

"Sec. 85. Be it further enacted, etc., That all laws or parts 
of law contrary to the provisions of this act and all laws 
relating to the same subject-matter are hereby repealed, and 
this act shall take effect from and after the passage." 



6 
Revised Statutes, 1870. 

This revision took effect April 1, 1870. It contains a 
general-election law, differing materially from the act of 
1870, and made no provisions for a returning board, and 
this revision also re-enacted the special act of 1868. 

Section 1410 of the revision is as follows: 

"Sec. 1410. In every year in which an election shall 
be held for electors of President and Vice-President of the 
United States, such election shall be held on the Tuesday 
next after the first Monday in the month of November, in 
accordance with an act of Congress of the United States 
approved Jan. 13th, 1845, entitled 'An act to establish a 
uniform time for holding elections for electors of President 
and Vice-President in all States of the Union,' and such 
elections shall be held and conducted in the manner and 
form provided by law for general State elections." 

Sections 2823-2832 of the revision are the same in sub- 
stance as the act of 1868. Section 2826 of the revision in 
relation to the canvass of votes given for presidential elec- 
tors is as follows: 

"Sec. 2826. Immediately after the receipt of a return 
from each parish, or on the fourth Monday of November if 
the returns should not sooner arrive, the Governor, in 
presence of the Secretary of State, the Attorney General, a 
district judge of the district in which the seat of govern- 
ment may be established, or any two of them, shall examine 
the returns, and ascertain therefrom the persons who have 
been duly elected electors." 

Section 3990 of the revision repealed all former laws or 
parts of laws on the same subject-matter covered by the 
revision, with certain exceptions not material here. 

The Act of 1872. 

Nov. 20, 1872, the Legislature passed another general 
election law, which was in force at the last November elec- 
tion. Sections 1, 29, 32, and 71 are as follows : 

" Sec. 1. Be it further enacted, That all elections for 
State, parish, and judicial officers, members of the General 



Assembly, and for members of Congress, shall lie held on 
the first' (Tuesday after the first) Monday in November ; 
and said election shall be styled the general elections. 
They shall be held in the manner and form and subject to 
the regulations hereafter prescribed, and no other. 

''Note. — By constitutional amendment, 1874, the day 
for holding general elections was changed from the first 
Monday to the first Tuesday following the first Monday in 
November. 

"Sec. 29. Be it further enacted, etc., That in every year 
in which an election shall be held for electors of President 
and Vice-President of the United States, such election shall 
be held at the time fixed by act of Congress. 

" Sec. 32. Be it further enacted, etc., That the provisions 
of this act, except as to the time of holding elections, shall 
apply in the election of all officers whose election is not 
otherwise provided for. 

"Sec. 71. Be it further enacted, etc., That this act shall 
take effect from and after its passage, and that all others 
on the subject of election laws be and the same are hereby 
repealed." 

I. 

The first questions naturally suggested by this discussion 
are, what is the character of this Tribunal, and what is 
the nature of the powers conferred upon it? 

The Constitution of the United States embodies the 
American conception of a Republic. It creates a Govern- 
ment to exercise the powers of sovereignty over certain 
enumerated subjects. It proceeds upon the fundamental 
idea that the rights, privileges, and liberties of the people 
can only be secured against encroachment on the part of 
those charged with the execution of governmental powers 
by a careful separation of legislative, executive, and judi- 
cial powers, and a distribution of such powers among three 
great, equal, and co-ordinate departments. The legislative 
power is vested in the Congress, the executive power is 
vested in the President, and the judicial power is vested 
in one Supreme Court, and in such inferior courts as the 



Confess may from time to time ordain and establish. 
"The indues, both of the Supreme and inferior courts 
shall hold their offices during good behavior, and shall, at 
stated times, receive for their services a stated compen- 
sation, which shall not be diminished during their con- 
tinuance in office." , 

It is well settled that "the judicial power cannot be 
vested elsewhere than in courts composed of judges hold- 
ing their offices during good behavior. 

It is therefore certain that no part of « the judicial 
power" can be vested in a Tribunal organized as tins 
Tribunal is. No Tribunal created by act ot Congress, 
whose decisions are subject to review except by other judi- 
eial courts of superior jurisdiction, can be considered as 
jndicial court, The Court of Claims, as i original y con- 
stituted, could render judgments, so called; but _sueh 
judgments were submitted to the approval and ultimate 
'action of Congress. For this reason, the Supreme Court 
of the United States held that no appeal would lie from its 
decisions to the Supreme Court of the United States. 
Gordon v. The United States, 2 Wall., 561. 

After this decision, Congress remodeled that court and 
gav e conclusive effect to its judgment; sine e wh eh ap- 
pals have been entertained by the Supreme Court of the 
United States. 

In The United States v. Ferriera, 13 How 40, an act of Con- 
fess had conferred upon the district judge of the Un ted 
1 as for Florida authority to adjudicate upon certain 
2£ arising under the treaty with Spain ; which ^ 

i „ Vindicated bv him, should be paid, if the, secretary 
tZ tet:; iudd, on' a report of the evidence, deem 
it equitable. The court, by Taney, C. J., say : 

"The powers conferred by these acts of Congress agon 

K^Knir^tlusttlng more than the power 



9 

ordinarily given by law to a commissioner appointed to 
adjust claims to lands or money under a treaty, or special 
powers to inquire into or decide any other particular class 
of controversies in which the public or individuals may be 
concerned. A power of that description may constitu- 
tionally be conferred on a Secretary as well as on a com- 
missioner. But is not judicial in either case in the sense in 
which judicial power is granted by the Constitution to the 
courts of the United States." 

See also Ray burn's Case, 2 Dall., 409. 

It is, therefore, plain from the provisions of the Consti- 
tution that the judicial power could not be vested in 
this Tribunal, and it is equally clear that the bill organ- 
izing this Tribunal does not pretend to clothe it with 
such power, because the decision, so called, which this 
Tribunal may render is submitted to the approval of and 
may be reversed by the two Houses of Congress. 

What, then, is this Tribunal? It is, we submit, a mere 
legislative commission, exercising political power pertain- 
ing to the jurisdiction of Congress. Congress finds itself 
charged with the duty of ascertaining who, if any one, has 
been elected President of the United States, by the votes 
cast in ths several Electoral Colleges on the 6th of Decem- 
ber last. And to aid it in the performance of this duty — 
the exercise of this political power — it has raised this 
commission to investigate, and decide, and report to the 
two Houses of Congress upon certain matters included in 
the performance of that duty ; and the bill raising this 
commission provides that its report shall be made to the 
two Houses, and shall be conclusive, unless reversed by 
the Houses themselves. 

There is no doubt of the power of both Houses of Con- 
gress by law, or perhaps by a joint resolution, to create a 
commission to investigate and report upon any subject 
falling within the scope of ordinary legislation, or relating 
to the performance of any duty cast upon Congress by the 
Constitution. Similar parliamentary commissions fre- 
quently occur in English history; sometimes raised by 
2 



i" 



10 



toes authorized by statute and appointed ^by 
For instance, by statute 15 aud 16 W > 

to enquire into alleged coiiu F F comm issiou 

u f t-Lo House of Commons, wnicn eoimu 
members of the House oi persons and 

was authorized by the statute to send ^ to p 
papers, administer oaths, examine witnesse e 
11 swearing before such commission w^db* 

tion upon that important subject. 
May's Par. Prac, p. 59*5. 

^Constitution ^^^^^Z 
the votes given in the several Electa ^U- of ^ 
shall be certified and ret urned to he ft 
Senate, and then provides as follows . 

the Senate aud l* 0086 °* T , THEN be counted.' 
certificates, and the votes shall then 

tion does not declare. M ostot the I 
the Constitution of the Unit d Stages are ^ ^ 

some designated department ^or office^ r _ 

powers, however, conferred upon the ^ 

erally. For instance, article 4, section *, F 



follows : 



f0 . T W h; United States ^JT^J^CT^ 
this Union a ^publican foimot gov a p p ii C atiou 

protect each of them ^jj^;^ the^egiBla- 
batW5i?^K domeiiic violence. 

The last Cause of the Legislative article confers upon 
Congress the power — 



11 

other powers rested by this Constitution in the Govern- 
ment of the United States, or in any Department or Office 
thereof." 

Congress has provided by law for the execution of the 
power as to protection against domectic violence by the 
President. 

The constitutionality of the bill creating this commission 
may be considered upon one or the other of two grounds. 

(1) If the power to count the votes is vested in the two 
houses of Congress, then this commission is a proper in- 
strumentality for making the necessary investigation to 
enable the two houses intelligently to execute the power. 
If on the other hand the case is to be treated as one of 
power granted generally — that is, without designation as 
to who shall perform it — then it falls within the power of 
Congress to make laws for its execution as a power vested 
by the Constitution in the Government of the United 
States, or in some department or officr thereof. If the 
latter is the true view of the Constitution, then Congress 
might pass a law creating a commission or court, to be 
appointed by the President to count the votes, and leave 
the matter entirely to them. 

But, evidently, the bill proceeds upon the theory that the 
votes are to be counted by the two houses of Congress, 
because by the bill power is reserved to the two houses to 
set aside the report — called the decision — to be made by 
this commission. And considering the matter in this light 
it is manifest that Congress may impose upon the commis- 
sion such duties — that is, order it to investigate such ques- 
tions as it may see fit. It may direct the commission to 
report what is the prima facie right of either candidate ap- 
pearing from the face of certain papers, or it may direct 
this commission to ascertain and report upon the real de 
jure right of the several candidates. 

What duty, then, does the law creating this tribunal 
impose upon it? The law declares tha' you shall — 

" By a majority of votes decide whether any and what 






12 

votes from such State are the votes provided for by the 
iTJtZn of the United States, and how rnany and what 
■persons were duly appointed electors in such State ? 

Inasmuch as by the Constitution no per.on can cast a 
vote for President who has not been duly appointed an 
elector, it would undoubtedly have been sufficient to pro- 
vide that this tribunal should decide "what votes from 
such State are the votes provided for by the Constitution 
But for greater certainty, and to end all question, ,t s 
further expressly provided that this tribunal shall jec do 
"how many and what persons were duly appointed elec- 

tors in such State. , 

And to enable you to perform this duty, the act clothes 
you with all the powers of the two Houses of Congress 
What this means may be inferred from the fact that he 
two Houses of Congress in the last count ofp^den^ 
votes concurred in deciding that the electoral vote of the 
Louisiana college ought to be excluded, because the votes 
cast at the popular election for electors had not been 
canvassed according to the laws of that State ; thus going 
behind a regular certificate of the Governor that the elec- 
tors had been duly appointed, and a regular return of 
the votes cast by said college. This is at least a construc- 
tion by the two Houses themselves of their power to go 
behind the certificate of the Governor to ascertain whether 
the electors had been duly appointed. It will be said that 
this was under the 22d joint rule of the two Houses. It 
seems to be a matter of dispute between the two House 
to-day whether or not that rule is now in force; but 
whether it is or uot, is wholly immaterial. Either House, 
or the two Houses, may regulate practice in the exercise 
of their constitutional authority; but ueither, nor both, 
can add to that authority by rules of their own If this 
ioint rule added to the Constitution, it was void; if it took 
from the Constitution, it was void ; if it did neither, it was 
useless. And the concurrent action of both Houses of 
Congress, in rejecting the vote of Loui 8l ana four years 



13 

ago, must be regarded as a declaration by them of their 
power in the premises, and that power they have con- 
fered upon this tribunal. 

This tribunal has been created to meet a great national 
emergency. The public welfare and business interests 
alike require a speedy, final, and satisfactory settlement of 
the presidential question. The people will be content with, 
and the rival candidates will acquiesce in, any determina- 
tion of the question founded upon the full merits of the 
case. But no one will be content with, no candidate will 
acquiesce in, a determination of this great question which 
ignores the merits and rests upon technicalities or false 
certificates. 

It is a total error to suppose that this tribunal can make 
any decision which, in the judicial sense of that term, can 
settle this question. And it is an equal error to suppose 
that Congress has pretended to clothe this tribunal with 
any such power. 

On the contrary, section 6 of this bill reserves to the 
defeated candidate the right — if any such right now exists 
by law — to prosecute a writ of quo warranto against the 
candidate who may be counted in. It has been settled in 
England for more than one hundred years, and is perfectly 
well settled in this country, that information in the nature 
of quo warranto is in its nature a civil proceeding, and 
must be so classified in the distribution of cases between 
courts of civil and courts of criminal jurisdiction. 
Rex v. Francis, 2 D. $ R, 484. 

In State Bank v. The State, 1 Blackford, 272, the court 
said : "We have no need of resorting to the general doc- 
trine or information, for a quo ivarranto on information is 
a criminal proceeding only in name and in form ; in its na- 
ture it is purely a civil proceeding. ' ' 

Citing 2 Kid on Corpo., 439. 

King v. Francis, 2 T. R., 484. 



ttf 



The proceeding by information in the nature of a quo war- 



14 

ranto is essentially a civil proceeding, and the pleadings in 
it are as much subject to amendment as they are in ordinary 
civil actions. It is criminal only in form." 

State of Florida v. Gleason, Flor., 109. 

In Brison v. Lingo, 26 Mo., 496, the Supreme Court said : 
" The inquiry arises, is this a criminal case? For a great 
while it has been applied to the simple purpose of trying 
civil right, and regarded as a remedy to try the right to 
office." The court held it was a civil case. 

See also State v. Kupfurle, 44 Mo., 154. 

A proceeding by quo warranto is not a criminal proceeding. 
Ensminger v . Peo, 47 III., 384. 

In Commonivealth v. Browne, 1 S. & R., 382, it was held 
that " an information in the nature of a quo warranto, al- 
though a criminal proceeding in form, is in substance but a 
civil one ; and is therefore not within the prohibition of the 
10th article of the Constitution of Pennsylvania." 

In State ex rel., Bashford v. Barstow, 4 Wis., 567, the 
Attorney General, after some proceedings, filed a formal 
discontinuance on the part of the State, but the court held 
the suit must proceed as between the relator and the de- 
fendant, and the court proceeded and rendered judgment 
in favor of the relator ; and he thereupon entered into and 
held the office for the balance of the term. 

The Constitution of the United States, art. 3, sec. 2, 
declares that the judicial power of the United States 
" shall extend to all cases arising under this Constitution, 
the laws of the United States, and treaties made under 
their authority," etc. 

A contest between Mr. Tilden, if he shall be counted out, 
aud Mr. Hayes, if he shall be counted in, touching the 
right to exercise the office of President, would undoubtedly 
be a case arising under the Constitution and laws of the 
United States. 



15 

The act of Congress March 3, 1815, 18 Statutes at Large, 
Part 3, provides as follows : 

"That the Circuit Courts of the United States shall have 
original cognizance, concurrent with the courts of the sev- 
eral States, of all suits of a civil nature at common law or 
in equity, where the matter in dispute exceeds, exclusive 
of costs, the sum or value of five hundred dollars, and aris- 
ing under the Constitution or laws of the United States, 
or treaties made, or which shall be made, under their au- 
thority," &c. 

It is well settled that where the title to an office is in 
dispute the amount involved, for the purpose of jurisdic- 
tion, is the salary of the office. 

U. S. v. Addison, 22 How., 174. 

It is true the act of Congress quoted above says nothing 
about writ or information, of quo ivarranto. But when an 
act of Congress confers upon a Circuit Court jurisdiction of 
a case or controversy, the power of the court to issue the 
proper writ, or entertain the proper proceedings to bring 
the case or controversy before the court, cannot be ques- 
tioned. 

It is well settled that in proceedings by quo ivarranto 
the court will ascertain the right to the office and go 
through all forms, fictions, certificates of canvassing boards 
and commissions of office to ascertain that right. 

People v. Van Slyck, 4 Cow., 297. 

People v. Ferguson, 8 Cow., 102. 

Jeter v. State, 1 McCord, 233. 

People v. Vail, 20 Wend., 12. 

Bashford v. Bar stow, 4 Wis., 567. 

Hill v. State, 1 Ala., (N, S. s ) 559. 

As a determination of this question by this tribunal based 
upon the broad merits of the case would give peace to the 
country and set the obstructed wheels of enterprise once 
more in motion, so, on the other hand, a narrow and tech- 
nical decision which would throw the question into a judi- 
cial controversy to continue for months would be a calam- 



16 

ity to the country and cast a shadow upon the efficiency of 
free institutions. 

This is undoubtedly the reason why Congress has di- 
rected this commission to inquire into the ultimate, final 
fact as a court of law would do on a quo warranto — re- 
serving to itself, however, the right to adopt or reject such 
conclusion in the final counting of votes, which is to be 
done by the two Houses themselves after this commission 
shall have performed its functions. The duty cast upon 
this commission to inquire and decide — that is, report — 
w T hat persons were "duly appointed electors" can be satis- 
fied in no way but by an inquiry into the ultimate fact; 
that is, the legality of such appointment. This commis- 
sion must take judicial notice of the laws of Louisiana. 
[Peningion v. Gibson, 16 How., 65.) It must therefore as- 
certain whether any law of that State directs the manner 
in which electors shall be appointed; whether such State 
law is in accordance with the Constitution of that State, 
and whether in fact the electors were appointed according 
to such law. Without this it is impossible to say whether 
or not they were duly appointed. 

II. 

Whether the election law of 1870 was repealed by the 
revision, or whether it remained in force after April 1, 
1870, when the revision took effect, depends upon the 
effect to be given to several acts of the legislature enacted 
at the session of 1870. 

On the 28th February, 1870, the following act was 



" "No. 50. An act giving precedence in authority to all 
the other acts and joint resolutions passed by the general 
assembly at this session over the acts known as c The 
"Revision of the Statutes and of the Civil Code and Code of 
Practice' when there exists any conflict in the provisions 
of said acts and revisions. 



17 

" Section 1. Be it enacted by the Senate and House of Rep- 
resentatives of the State of Louisiana in general assembly con- 
vened, That all the acts and joint resolutions passed during 
the present session of the general assembly which may be 
contrary to or in any manner conflict with the acts of the 
present session known as ' Revision of the Statutes of a gen- 
eral character, and of the Civil Code and Code of Practice,' 
shall have precedence of said revisions, and be held as the 
law in opposition thereto, and as repealing those acts so far 
as they may be in opposition or conflict." — Promulgated 
March 20, 1870. 

On the 14th March, 1870, the revision was passed, and 
by its terms was to go into effect April 1, 1870. 

On the 16th March, 1870, the election law was passed, 
to take effect from its passage. 

The question is whether after the 1st April the revision 
repealed the election law of 1870, or whether the election 
law of 1870, by virtue of the act of February 28, 1870, 
remained in force notwithstanding the revision, and nulli- 
fied the general election law contained in the revision. 
The general rule is that an act passed to take effect on a 
future day, has on that day the same effect as though it 
had been passed on that day. 

"A law speaks from the time of its going into effect." 

Rice v. Ruddiman, 10 Mich., 125. 

Peo. v. Johnson, 6 Cat, 673. 

Arthur v. Franklin, 16 Ohio N. S., 193. 

Lyner v. Stale, 8 Ind., 490. 

Supervisors v. Keady, 34 PL, 293. 

Charless v. Lamberson, 1 Clarke, {Iowa,) 435. 

Price v. Hopkins, 13 Mich., 318. 

Treating the revision as havingbeen passed April 1, 1870, 
the time when by its own terms it was to take effect, it re- 
pealed the election law of 1870, and also repealed all prior 
acts denying to it the full force and effect which would 
otherwise attach to it as a law. And this I believe to be 
the sound view of the subject. 

But if it is competent for the Legislature to provide that 
3 



18 

of two acts thereafter to be passed the first shall repeal the 
second, then the revision taking effect April 1st, 1870, was 
subordinated to the election law of March 16, 1870. 

It is not very material to this case which view of this 
matter shall be taken by the court. It is certain that the 
act of 1868, re-enacted in the revision, was or it was not in 
force at the last election. 

I shall present the case first upon the ground that the 
act of 1868 was in force, as I incline to that opinion. 

(1.) Assuming the act of 1868 (re-enacted in the revision 
of 1870) as in force, it is not preteuded that the votes given 
for electors at the last election in that State have ever been 
canvassed as required by this act. It is evident that the 
canvass which was made, and which resulted in the exclus- 
ion of over 6,000 votes in favor of the Tilden electors, was 
not only unauthorized by this act, but in direct violation of 
its express provisions. 

By this law, section 2826, it is provided that — 

"Immediately after the receipt of a return from each parish, 
or on the fourth Monday of November if the returns 
should not sooner arrive, the Governor in the presence of 
the Secretary of State, the Attorney General, a district 
judge of the district in which the seat of government may 
be established, or any two of them, shall examine the re- 
turns, and ascertain therefrom the persons who have been 
duly elected electors. 

"Sec. 2827. One of the returns from each parish, in- 
dorsed by the Governor, shall be placed on file and pre- 
served among the archives of the Secretary of State. 

" Sec. 2828. The names of persons elected, together 
with a copy of the returns from the several parishes, shall 
forthwith be published in the newspaper or papers in which 
the laws of the State may be directed to be published." 

Under this law no returns whatever could be excluded. 
The result must be ascertained from all the returns " from 
each parish." No judicial power and no discretion is con- 
ferred by this act; the duty is purely mathematical. The 
returns from each parish are to be preserved among the 
archives of the Secretary of State. It will not be pre- 



19 

tended by any one that if this law was in force the elec- 
tion was conducted and returned according to its provis- 
ions. If the election law of 1868, as re-enacted in the 
revision of April 1, 1870, was not repealed by the act 
of March 16, 1870, then it certainly was in force at the 
time of the election, unless repealed by the act of 1872. 
The history of this act of 1872 is well known. In the 
early part of 1872 the Legislature passed this bill and 
sent it to Governor Warmoth for his approval. He 
neither approved or vetoed the bill during the session of 
the Legislature. But after the presidential and the State 
elections of November, 1872, when Governor Warmouth 
was engaged in a contest with Judge Durrell, months 
after the adjournment of the Legislature which passed the 
bill, and after Judge Durrell in the Circuit Court of the 
United States had tied up the canvass of those elections, 
Governor Warmoth, as the only means of counteracting 
the usurpations of a Federal judge, took this act of 1872 
from his pocket and pretended to give it his approval, and 
caused it to be promulgated as a law of the State. 

The repealing clause contained in this act is very sweep- 
ing in terms, but was evidently intended to repeal only 
the general election laws of the State. An examination 
of these statutes will show that the Legislature always 
treated the election of electors as a matter distinct from 
the general elections of the State. 

In 1868 the Legislature, on the 19th of October, passed 
an act entitled " An act relative to elections in the State 
of Louisiana," &c.,and on the 30th day of the same month 
passed another act entitled an act — 

"Relative to presidential electors," and both were pub- 
lished in the session laws of that year as distinct and in- 
dependent acts. 

In the Revised Statutes of 1870 the general election 
law of the State is published under the head ''Elections," 
on pages 272-282; under the head of "Presidential Elect- 
ors," on pages 550-553, is published the act of 1868, 



20 

Here the intention is manifest to treat the two elections as 
distinct, and they are regulated by different provisions. 
The election of State officers under the authority of the 
State constitution, and the election of electors under the 
authority of the Constitution and laws of the United 
States, are treated in the laws of Louisiana as distinct sub- 
jects, and, notwithstanding the repealing clause of the 
act of 1872 is very broad, it is evident from the whole act 
that it was only intended to repeal all laws relating to gen- 
eral elections under State authority. It is a well-estab- 
lished rule for the interpretation of statutes, that, for 
the purpose of ascertaining the intentiou of the Legis- 
lature in any particular part of the act, the whole act must 
be considered; and if the general intention manifested by 
the whole act is clear, such intention will enable the court 
to control the language of other parts of the act. 
Blanchard v. Sprague, 3 Sumner, 279. 

"In doubtful cases a court should compare all the parts 
of a statute, and different statutes in pari materia, to ascertain 
the intention of the Legislature." 
The Elizabeth, 1 Paine, 10. 

"Words which, standing alone in an act of Congress, 
may properly be understood to pass a beneficial interest in 
land, will not be regarded as having that effect if the con- 
text shows that they were not intended to be so used." 
Bice v. Railroad Co., 1 Black, 358. 

That the act of 1872 was intended as a regulation only 
of the election, for State officers, and the repeal of former 
laws upon that subject, is manifest from the first section of 
that act. 

"Section 1. That all elections for State, parish, and 
judicial officers, members of the General Assembly, and for 
members of Congress, shall be held on the first Monday 
in November, and said election shall be styled the general 
elections. They shall be held in the manner and form and 
subject to the regulations hereinafter prescribed, and in no 
other." 



21 

Presidential electors are not State officers. As between 
the Union and the States to determine whether an officer 
is a Federal or State officer, we have only to determine 
whether the office is created by the Constitution and laws 
of the Union or the constitution and laws of a State. Sen- 
ators are elected by the Legislatures of the States, but the 
office is created by the Constitution of the United 
States, and nobody doubts that a Senator is an officer 
of the United States and not of the State which elects 
him. The office of elector is created by the Constitution 
of the United States. The office is therefore a Federal 
office and the fact that a State may fill the office by 
appointment does not change the character of the office. 
Suppose an amendment of the Constitution to be adopted 
to-morrow, providing that in addition to the present num- 
ber each State might appoint an additional judge of the 
Supreme Court of the Unk©d States, would it be pretended 
that a judge thus appointed was any less an officer of the 
United States than the other judges appointed by the 
President? The effect of the Constitution is simply this: 
it establishes an office and authorizes a State to fill it. The 
only power possessed by the State in regard to the electoral 
college for each State is the power of appointment; but 
in what manner the duties of the office shall be performed, 
when the electors shall meet, and how they shall vote, the 
manner and order of their proceedings, the authentication 
of their action, and how to make return to the General 
Government, whether they shall give bonds or take oaths 
and receive compensation, and indeed all things concern- 
ing the office except the filling of the office are subjects of 
Federal regulation; subjects over which the State has no 
control whatever. 

Again, the act of 1872 contains no direction in regard to 
the manner of appointing electors. It does not declare, 
nor does any other law of the State, except that of 1868, 
whether the electors shall be chosen by the people, elected 
by the Legislature, or appointed by the Governor. The act 



22 

of 1868 is a specific and complete regulation of the whole 
subject, and provides for the election of electors by a popu- 
lar vote ; and provides that, in case of the absence of any 
of the electors, the other electors may supply their place by 
ballot ; that two electors shall be elected at large, and one 
from each Congressional district ; and provides how the 
votes given shall be canvassed and certified. The act of 
1872 contains no provision upon any of these subjects, and 
only refers to electors for the purpose of fixing the time 
for the appointment, a provision wholly useless, because 
Congress, and not the State, must fix the time for making 
such appointment. All that the State can do is to direct, 
by its Legislature, the manner in which, and not the time 
at which, the appointment shall be made, when the time 
arrives for making it as provided by Congress. 

It is not to be supposed that the Legislature, in the act 
of 1872, intended to strike down the only act regulating 
the manner for appointing Presidential electors, without 
making any other provision covering the subject. 

Again, the act of Congress (Rev. Stats., p. 21, sec. 133) 
provides as follows : 

"Sec. 133. Each State may, by law, provide for the filling 
of any vacancies which may occur in its college of electors 
when such college meets to give its electoral vote." 

The act of 1868 provides that when the electoral college 
meets if any elector is absent his place may be filled by 
the electors present, they voting by ballot. But the act of 
1872 provides, (sec. 24) : 

" That all elections to be held in this State to fill any 
vacancies shall be conducted and managed, and returns 
thereof shall be made, in the same manner as is provided for 
general elections." 

Now, if this act of 1872 be construed as repealing the 
act of 1868, in regard to the election and returns for election 
of electors, then, beyond question, a vacancy in the elect- 
oral college would be one of the vacancies provided for in 
the section last quoted ; and such vacancy could only be 
filled by another popular election. 



23 

In the case at bar, when the Electoral College in Louis- 
iana convened it was found that two of the electors had 
been ijolding offices of" honor or trust" under the United 
States atthe time of the election, and therefore the election 
as to them was void under the provisions of the Constitu- 
tion of the United States. We contend here that this was 
not a vacancy, but was a case falling within section 134 
of the Revised Statutes of the United States; in other 
words, there had been a failure to make a choice as to 
them, and no law of the State, not even the law of 1868, 
provided for appointment to fill their places. But the 
Electoral College treated the < ase as one of vacancy, and 
proceeded by election to fill the places deemed vacant. 
Treating this as a case of vacancy, and not a case of a 
failure to elect, it was a regular proceeding under the 
act of 1868, but utterly void if that act was repealed by 
the act of 1872, because the language in the act of 1872, 
in regard to filling vacancies, is as broad as other parts of 
the act in regard to the election of officers. And it is 
impossible for this tribunal to hold that the act of 1872 
repealed the act of 1868 in regard to the election of elect- 
ors, but that the section last quoted did not repeal the 
section in the act of 1868, which authorized a different 
method of filling a vacancy in the particular case. 

III. 

But if the election law of March 16, 1870, survived the 
effect of the Revised Statutes, April 1, 1870, then the act 
of 1868 was repealed, and there was no law in force in that 
State at the last election directing the manner of appoint- 
ing Presidential electors. 

It is very clear that the election law of 1870 repealed 
the act of 1868. 

The act of 1870, after providing a method of holding, 
conducting, and returning the general elections of the 
State, provided, in section 35, that the election for electors 
should be held on the day fixed by the act of Congress, 



24 

and provided as follows: "and such elections shall be held 
and conducted, and returns made thereof, in the manner 
and form prescribed by law for the general elections. 9 ' 
And the last section of the act provided as follows: 

" That all laws or parts of laws contrary to the pro- 
visions of this act, and all laws relating to the same subject- 
matter, are hereby repealed, and that this act shall take 
effect from and after its passage." 

The special act of 1868 was, by implication, in part at 
least, repealed by the 35th section of this act, which made 
different provision for holding, conducting, and returning 
the election. Even conceding that the portiou of the act 
of 1868 which declared who should be voters and who 
should be voted for, might have stood with the 35th section 
of this act, and therefore not have been repealed by this 
section ; yet it is impossible to hold that any part of the act 
of 1868 escaped the effect of the repealing clause of this 
act of 1870, because it is evident that the 35th section of 
the act of 1870 and the act of 1868 were " laws relating to 
the same subject-matter." 

IV. 

It is immaterial, so far as practical results are concerned, 
whether this court hold the act of 1868 to have been in 
force or not at the last election, because in either case 
votes enough to change the result must be excluded from 
the votes given by the Hayes electors. If the act of 1868 
was in force, then there has been no canvass according to 
law of the votes cast for electors, and all the votes given 
by the Hayes Electors must be rejected, as they were four 
years ago by both Houses of Congress, for the same reason. 
If the act of 1868 was not in force, then there was no law 
directing the manner of appointment of electors, and al! 
the votes given by the Hayes electors must be rejected 
for that reason. Because it is evident that if a State has 
omitted through its Legislature to provide the manner in 
which electors shall be appointed, or, having made such 



25 

provision, repeals it and makes no other, no constitutional 
appointment can be made by such State. 

And if this were otherwise, still the two votes given by 
the two persons elected by the Electoral College to fill the 
supposed vacancies must be excluded. 

y. 

Although we are entirely confident that the vote of 
Louisiana must be excluded for the reasons before given, 
yet should the court differ with us in regard to the objec- 
tions before made, and hold that the act of 1872 repealed 
the act of 1868 and is itself a complete regulation of the 
subject of appointment of electors, still we submit that 
the rejection of over 6,000 Tiki en votes by the Returning 
Board under the provisions of the act of 1872 was wholly 
unauthorized by that act, and void. This brings us to 
consider the act of 1872 according to its own provisions 
in regard to the jurisdiction and powers of the Returning 
Board. Section 3 of this act is as follows: 

" Sec. 3. Be it further enacted, etc., That in such canvass 
and compilation the returning officers shall observe the 
following order : They shall compile first the statements 
from all polls or voting places at which there shall have 
been a fair, free, and peaceable registration and election. 
Whenever from any poll or voting place there shall be 
received the statement of any supervisor of registration or 
commissioner of election in form as required by section 
twenty-six of this act, on affidavit of three or more citizens, 
of any riot, tumult, acts of violence, intimidation, armed 
disturbance, bribery, or corrupt influences, which pre- 
vented or tended to prevent a fair, free, and peaceable vote 
of all qualified electors entitled to vote at such poll or 
voting place, such returning officers shall not canvass, 
count, or compile the statements of votes from such poll 
or voting place until the statements from all other polls 
or voting places shall have been canvassed and compiled. 
The returning officers shall then proceed to investigate 
the statements of riot, tumult, acts of violence, intimida- 
tion, armed disturbance, bribery, or corrupt influences at 
any such poll or voting place; and if from the evidence of 
4 



26 

such statement they shall be convinced that such riot, 
tumult, acts of violence, intimidation, armed disturbance, 
bribery, or corrupt influences did not materially interfere 
with the purity and freedom of the election at such poll or 
voting place, or did not prevent a sufficient number of 
qualified voters thereat from registering or voting to ma- 
terially change the results of the election, then, and not 
otherwise, said returning officers shall canvass and 
compile the vote of such poll or voting place with 
those previously canvassed and compiled ; but if said 
returning officers shall not be fully satisfied thereof, it 
shall be their duty to examine further testimony in regard 
thereto, and to this end they shall have power to send for 
persons and papers. If, after such examination, the said 
returning officers shall be convinced that said riot, tumult, 
acts of violence, intimidation, armed disturbance, bribery, 
or corrupt influences did materially interfere with the 
purity and freedom of the election at such poll or voting 
place, or did prevent a sufficient number of the qualified 
electors thereat from registering and voting to materially 
change the result of the election, then the said returning 
officers shall not canvass or compile the statement of the 
votes of such poll or voting place, but shall exclude it from 
their returns : Provided, That any person interested in said 
election by reason of being a candidate for office shall be 
allowed a hearing before said returning officers upon mak- 
ing application within the time allowed for the forwarding 
of the returns of said election." 

Section 26 of this act is as follows : 

"Sec. 26. Be it further enacted, etc., That in any parish, 
precinct, ward, city or town, in which, during the time of 
registration or revision of registration, or on any day of elec- 
tion, there shall be any riot, tumult, acts of violence, intim- 
idation and disturbance, bribery or corrupt influences at any 
place within said parish, or at or near any poll or voting 
placeor place of registration, or revision of registration, which 
riot, tumult, acts of violence, intimidation and disturbance, 
bribery or corrupt influences shall prevent, or tend to pre- 
vent a fair, free, peaceable and full vote of all the qualified 
electors of said parish, precinct, ward, city or town, it shall 
be the duty of the commissioners of election, if such riot, 
tumult, acts of violence, intimidation and disturbance, bri- 
bery or corrupt influences occur on the day of election, or of 
the supervision of registration of the parish, if they occur 



27 

during the time of registration or revision of registration, to 
make in duplicate and under oath a clear and full statement 
of all the facts relating thereto, and of the effect produced by 
such riot, tumult, acts of violence, intimidation and disturb- 
ance, bribery or corrupt influences in preventing a fair, free, 
peaceable, and full registration or election, and of the number 
of qualified electors deterred by such riots, tumult, acts of 
violence, intimidation and disturbance, bribery or corrupt 
influences from registering or voting, which statement shall 
also be corroborated under oath by three respectable citizens, 
qualified electors of the parish. When such statement is 
made by a commissioner of election or a supervisor of regis- 
tration, he shall forward it in duplicate to the supervisor of 
registration of the parish, if in the city of New Orleans, to 
the Secretary of State, one copy of which, if made to the 
supervisor of registration, shall be forwarded by him to the 
returning officers provided for in section 2 of this act when 
he makes the returns of election in his parish. His copy of 
said statemeut shall be so annexed to his returns of elections 
by paste, wax, or some adhesive substance, that the same can 
be kept together, and the other copy the supervisor of regis- 
tration shall deliver to the clerk of the court of his parish 
for the use of the district attorney." 

We contend that the action of the Returning Board in 
excluding from their canvass over 6,000 votes for the Til- 
den electors was void, even if the provisions of this act repeal 
the act of 1868, for the following reasons : 

1. The Constitution of the United States provides that 
4 ' each State shall appoint, in such manner as the Legisla- 
ture thereof may direct, a number of electors, equal to the 
whole number," &c. 

When the Constitution refers to a State it refers, of 
course, to a State of this Union — a community organized 
under a State constitution republican in form. When the 
Constitution of the United States was adopted the States 
were communities organized according to the American 
idea of republics. One of the most important and essen- 
tial features of a Republican government, according to 
the American idea, is a separation of legislative, judi- 
cial, and executive functions, and a distribution of such 



28 

powers among separate and distinct departments. One 
of the duties imposed upon the Federal Government 
is to guarantee to every State in this Union a repub- 
lican form of government. And, of course, in admit- 
ting new States it is the duty of Congress to see that 
such is the form of their government. As it is the duty 
of the United States to guarantee — that is, see to it that 
every State has a republican form of government — it fol- 
lows that the government of a State, its form, structure, 
and powers must constantly be in the Federal mind. And 
the provision of the Constitution that each State shall ap- 
point electors must be construed to mean that such State, 
according to the provisions of its own constitution, shall 
appoint electors. No State could delegate this power to 
another State or to a foreign prince or power, or to indi- 
viduals, by name or classifying designation. It is only 
the State — the constitutional republican State — a State of 
this Union in its written republican form of govern- 
ment, proceeding acording to of its constitution, which 
constitution is constantly subject to Federal supervision, 
that can appoint an elector. In other words, when the 
Constitution provides that each State shall appoint electors, 
it means, of course, that it shall appoint them according to 
its own constitution and laws. And what its laws may be 
must be determined by its own constitution, which, on the 
admission of the State, has been approved by Congress ; 
and which, in all its mutations by amendments, con- 
tinues to enjoy the approval of Congress as a republican 
form of government. And when the Constitution of the 
United States declares that " each State shall appoint, in 
such manner as the Legislature thereof may direct, a num- 
ber of electors," &c, it does in substance provide that the 
State shall prescribe a manner for such appointment in ac- 
cordance with its own constitution. The Federal Govern, 
ment knows that any act of a State legislature in violation 
of its own constitution is void. In yet other words, the 
Constitution of the United States provides that the State, 



29 

in providing for the maimer of appointment of electors, 
shall proceed according to the provisions of its own con- 
stitution. Therefore, if it can be shown that the manner 
provided by the legislature for the appointment of electors 
by a State is in contravention of its own constitution, such 
appointment is void under the Constitution of the United 
States. 

Now, let us examine the constitution of Louisiana to as- 
certain whether the provisions of the act of 1872 — if the 
same are applicable to the election of electors — is in con- 
formity to, or in contravention of, the State constitution. 

The constitution of Louisiana provides, title 4, article 
73, as follows : 

"Art. 73. The judicial power shall be vested in a su- 
preme court, in district courts, in parish courts, and in 
ustices of the peace." 

And then, after defining the jurisdiction of the several 
courts above mentioned, article 94 provides as follows : 

"Art. 94. No judicial powers, except as committing 
magistrates in criminal cases, shall be conferred on any 
officers other than those mentioned in this title, except such 
as may be necessary in towns and cities; and the judicial 
powers of such officers shall not extend further than the 
cognizance of cases arising under the police regulations of 
towns and cities in the State. In any case, when such 
officers shall assume jurisdiction over other matters than 
those which may arise under police regulations or under 
their jurisdiction as committing magistrates, they shall be 
liable to an action of damages in favor of the party injured 
or his heirs, and a verdict in favor of the party injured 
shall, ipso facto, operate a vacation of the office of said 
officer." 

Thus it will be seen that the constitution, not only by 
affirmative provisions vests the whole judicial power of the 
State in certain designated tribunals or magistrates, but, by 
negative provisions, forbids the exercise of any judicial 
power by others. 

The sections quoted from the act of 1872 undoubtedly 
pretend to vest judicial powers in the Returning Board. 



30 

The highest penalty that can be inflicted upon an American 
citizen for crime is disfranchisement. The elective fran- 
chise is not merely a right to deposit a ballot in a ballot- 
box, but it is a right to have such ballot counted, esti- 
mated, and made effectual in determining the result of an 
election. 

The 15th amendment of the Constitution provides that 
"the right of citizens of the United States to vote shall not 
be denied or abridged by the United States or by any 
State on account of race, color, or previous condition of 
servitude." 

What would be said of the law of a Southern State which 
should provide that the vote of a colored citizen should be 
received and deposited in the ballot-box, but that it should 
not be canvassed or returned ? Manifestly such a provision 
would be in contravention of this amendment. Hence it 
follows, that a provision of law which authorizes a can- 
vassing board to exclude from its return any votes legally 
cast, is a disfranchisement of the voters casting such votes. 
This infliction can only be visited upon the voters by an 
exercise of j udicial power. Consequently, any statute which 
authorizes the Returning Board to exclude such votes — 
authorizes such board to exercise judicial power — and is 
void under the quoted provisions of this State constitution. 

Again, it is contrary to the first principles of natural 
justice that one man should be punished for crimes com- 
mitted by another. By the provisions above quoted from 
this act it is provided in effect that the votes cast by a 
thousand honest men in a certain parish may be excluded 
from the canvass in consequence of violence, intimidation, 
or bribery committed by a thousand other men. A law 
which should provide that any voter who had been guilty 
of violence, intimidation, or bribery in an election should, 
on conviction thereof, be forever disfranchised, would be 
constitutional. But before such disfranchisement can be 
visited upon any voter he must be tried and convicted 
according to the forms of law in a tribunal possessing 



judicial power to try for the crime and declare the punish- 
ment. But by this act the full and extreme effect of 
judicial condemnation — that is, disfranchisement — may in 
effect be inflicted by a Returning Board, before whom the 
voter is not summoned ^o appear, has no hearing, but is 
condemned without appearance or hearing. A law which 
provides for such consequences in such case is not only in 
opposition to the constitution of Louisiana — anti-repub- 
lican, opposed to natural justice — but it is too outrageous 
and abominable to be tolerated in any civilized country. 

2. But even conceding the constitutionality of the sec- 
tions above quoted from the act of 1872, they do not pre- 
tend to confer this extraordinary power upon the Returning 
Board except when a case is made under the 26th section 
of the act; that is, when, accompanying the return from 
the precinct, there is a statement made showing the facts 
relating to an alleged " riot, tumult, acts of violence, intim- 
idation and disturbance, bribery or corrupt influences, and 
the effect produced thereby in preventing a fair, free, and 
peaceable and full election, and of the number of qualified 
electors deterred thereby ; said statement to be corroborated 
by three qualified electors of the parish." 

It is well settled that whenever a judicial court exercises 
a special and statutory power, outside of and apart from its 
general jurisdiction, it must appear, in order to sustain its 
jurisdiction, that it was acting in a case clearly within the 
statute and that it strictly pursued its statutory authority. 

In Thatcher v. Powell, 6 Wheaton, 119, the court, by 
Marshall, C. J., say : 

" In summary proceedings, when a court exercises an ex- 
traordinary power under a special statute prescribing its 
course, we think that course ought to be exactly observed, 
and those facts especially which give jurisdiction ought to 
appear in order to show that its proceedings are quoram 
judice. Without this act of assembly the order for sale 
would have been totally void. This act gives the power 
only on a report to be made by the sheriff. This report 



32 

gives the court jurisdiction, and without it the court is as 
powerless as if the act had never passed." 

It is too well settled to require citation of authorities in 
its support ; that when a judicial court is proceeding under 
statutory provisions, apart from the common law, or when 
a special tribunal or magistrate is exercising a special stat- 
utory jurisdiction, it must appear that the case was strictly 
within the statutory provision, and that the course pur- 
sued was exactly in conformity with the statute conferring 
the authority — 

" Justices' courts, not proceeding according to the course 
of common law are confined strictly to the authority given 
them — they can take nothing by implication, but must 
show the power expressly given them in every instance.' ' 

3 Burr, 1366. 

3 Ter 771 Bep., 444. 

Sir., 1256. 

2 Ld. Baym., 1144. 

Salk, 406. 

Jones v. Beed, 1 Johns. Cas., 20. 

Wells v. Newkirk, 1 Johns. Gas., 228. 

Powers v. People, 4 Johns. Cas., 292. 

Blooom v. Burdick, 1 Hill, 330. 

Adkins v. Breiver, 3 Cowen, 206. 

In Walker v. Turner, 9 Wheaton, 541, it was held that 
when a magistrate was pursuing special authority it was 
" essential to the validity of his judgment and of the pro- 
ceedings under it that the record should show that he acted 
upon a case which the law submitted to his jurisdiction." 

Now, it is submitted that not in a single case in which 
the Returning Board excluded the vote of a parish was the 
foundation laid for such exercise of its authority. 

To show this, let us refer to the machinery of elections 
in that state. 

The method of holding the elections and making re- 
turns, according to law, is as follows : 

The polling-place is presided over by three commis- 
sioners of election, appointed by the supervisor of regis- 



33 

tration for the parish, who is appointed by the Governor. 
After the balloting is concluded, the commissioners count 
the ballots, make two statements of the result, and deliver 
oue statement, together with the ballot-box containing all 
the ballots, to the clerk of the district court of the parish, 
and the other statement to the supervisor of registration, 
together with the tally-sheets, list of voters, &c. The 
supervisor for the parish is required, within twenty -four 
hours after the receipt ot all the statements and papers 
from the different polling-places, to consolidate such re- 
turns or statements, to be certified as correct by the clerk 
of the district court, and forward the same, with the orig- 
inals received by him, to the State Returning Board; such 
statement and papers " to be inclosed in an envelope of 
strong paper or cloth, securely sealed, and forwarded by 
mail." 

Section 43 makes it the duty of the supervisor to for- 
ward with his statement "a copy of any statement as to 
violeuce or disturbance, bribery or corruption, or other 
offenses specified in section 26 of this act, if any there be, 
together with all memoranda and tally-lists used in mak- 
ing the count and statement of the votes." 

Section 26 provides that the supervisors' copy of such 
statement "shall be so annexed to his returns of elec- 
tions by paste, wax, or some adhesive substance, that the 
same can be kept together, and the other copy the super- 
visor of registration shall deliver to the clerk of the court 
of his parish for the use of the District Attorney." 

Section 26 also provides what the statement in relation 
to riots, intimidations, &c, shall be; that it shall be made 
in duplicate and under oath; and that it shall be — 

(1) "A clear and full statement of all the facts relating 
thereto : 

(2) " And of the effect produced by such riot, tumult, 
acts of violence, intimidation, and disturbance, bribery or 
corrupt influences in preventing a fair, free, peaceable, and 
full registration or election ; 

5 



u 

(8) "And of the number of qualified electors deterred 
by such riots, tumult, &c, from registering or voting; 

(4) "Which statement shall also be corroborated under 
oath by three respectable citizens, qualified electors of the 
parish." And this section 26 also provides that the super- 
visor shall forward this statement with his return. 

The only authority pretended to be conferred by the 
act of 1872 upon the Returning Board to exclude any re- 
turn or statement of votes which comes within their 
power to canvass is in section 3 of the act, and is as fol- 
lows : 

"Whenever, from any poll or voting place, there shall 
be received the statement of any supervisor of registration 
or commissioner of election, in form as required by sec- 
tion 26 of this act, on affidavit of three or more citizens, 
of any riot, tumult, acts of violence, intimidation, armed 
disturbance, bribery, or corrupt influences, which pre- 
vented, or tended to prevent, a fair, free, and peaceable 
vote of all qualified electors entitled to vote at such poll 
or voting place, such returning officers shall not canvass, 
count, or compile the statements of votes from such poll 
or voting place until the statements from all other polls 
or voting places shall have been canvassed and compiled. 
The returning officers shall then proceed to investigate 
the statements of riot, tumult, acts of violence, intimida- 
tion, armed disturbance, bribery, or corruptinfluences at any 
such poll or voting place ; and if from the evidence of such 
statement they shall be convinced that such riot, tumult, 
acts of violence, intimidation, armed disturbance, bribery, 
or corrupt influences did not materially interfere with 
the purity and freedom of the election at such poll or 
voting place, or did not prevent a sufficient number of 
qualified voters thereat from registering or voting to 
materially change the results of the election, then, and 
not otherwise, said returning officers shall canvass and 
compile the vote of such poll or voting place with those 
previously canvassed and compiled; but if said return- 
ing officers shall not be fully satisfied thereof, it shall be 
their duty to examine further testimony in regard thereto, 
and to this end they shall have power to send for persons 
and papers. If, after such examination, the said returning 
officers shall be convinced that such riot, tumult, acts of 



35 

violence, intimidation, armed disturbance, bribery, or cor- 
rupt influences did materially interfere with the parity 
and freedom of the election at such poll or voting place, 
or did prevent a sufficient number of the qualified electors 
thereat from registering and voting to materially change 
the result of the election, then the said returning officers 
shall not canvass or compile the statement of the votes of 
such poll or voting place, but shall exclude it from their 
returns: Provided, That any person interested in said 
election by reason of being a candidate for office shall be 
allowed a hearing before said returning officers upon mak- 
ing application within the time allowed for the forwarding 
of the returns of said election." 

Thus it will be seen that the jurisdiction of the return- 
ing board to pass upon this subject at all is made to depend 
upon the jurisdictional fact that the return which the board 
receives from the parish supervisor is not only accom- 
panied with but attached to the statement provided for in 
the 26th section of the act in regard to riots, intimidation, 
&c. If such return is not accompanied by such statement, 
supported by the affidavit of three electors, in regard to 
riots, &c, the returning board is not authorized even by 
this act to examine at all into the subject, much less ex- 
clude any votes. And the principle of law universally 
recognized that a special tribunal, as distinguished from a 
judicial court of general jurisdiction, can only act upon a 
case clearly within its jurisdiction, and must strictly pursue 
the methods directed by the statute in exercising such 
statutory jurisdiction, applies in its full force to the return- 
ing board acting under this act of 1872. 

If we are right in this position, it is conclusive against 
the validity of the action of the Returning Board in ex- 
cluding over 6,000 votes given for theTilden electors ; be- 
cause the foundation for the exercise of this power by the 
Returning Board was not established in regard to a single 
parish, the votes of which were excluded by the board. 

VI. 

When the electoral college in this State met to vote for 
President, it was ascertained that two of the Hayes elect- 



36 

ors, A. B. Levisee and 0. H. Brewster, bad been holding 
offices of trust and profit under the United States on tbe 
7th of November last, when the election for electors was 
held. The college considered the election as to them void ; 
and that, for that reason, there were two vacancies in the 
board. They therefore induced Levisee and Brewster to 
pretend to be absent, thereby believing that their absence 
would amount to a vacancy ; and they proceeded to fill 
such supposed vacancies by electing the said Levisee and 
Brewster to fill their own vacancies. This was a palpable 
sham and fraud. 

But let us consider the case further. We submit that 
inasmuch as Levisee and Brewster were officers under the 
Government of the United States on the day of the elec- 
tion, November 7, the votes cast for them were void and 
as to them there was no election. In other words, the 
State appointed only six and not eight electors. That in 
regard to Levisee and Brewster, it was a case of failure to 
elect or appoint. Two cases are provided for by the act of 
Congress, (Eev. Stat., p. 21 :) 

" Sec. 133. Each State may, by law, provide for the fill- 
ing of any vacancies which may occur in its college of 
electors when such college meets to give its electoral vote. 

" Sec. 134. Whenever any State has held an election for 
the purpose of choosing electors, and has failed to make a 
choice on the day prescribed by law, the electors may be 
appointed on a subsequent day, in such a manner as the 
Legislature of such State may direct." 

Two cases are here provided for: one, the case of a 
vacancy occurring after the election ; the other, a failure 
to make an election. Waiving at present the question 
whether as between two candidates, the one receiving the 
greater number of votes being ineligible, his opponent is 
elected, in virtue of a smaller number of legal votes, and 
assuming that he is not, then it is unquestionable that the 
election is void. 



37 

In the case of the contested seat in the Senate between 
Vauce v. Abbott from North Carolina, there was a very fall 
discussion upon this subject. Vance, who received the 
largest number of votes, was ineligible under the fourteenth 
amendment to the Constitution, and Abbott, who received 
the next highest number of votes and was eligible, claimed 
the seat. The Senate decided that Abbott was not enti- 
tled to the seat, and, of course, that the State had failed 
to make an election of Senator. 

The Constitution of the United States, article 2, section 
1, authorizes each State to appoint an elector, but provides 
that no person holding an office of trustor profit under the 
United States shall be appointed. 

This provision of the Constitution applied to the case in 
hand is this : The State of Louisiana may appoint eight 
electors; but A. B. Levisee and 0. H. Brewster shall not 
be appointed. Hence any attempt to appoint Levisee and 
Brewster is unconstitutional and (void. And hence it fol- 
lows that the State appointed bu^t six electors; in other 
words, they failed to elect the full number to which the 
State was entitled. This is the case provided for by the 
last section quoted from the Revised Statutes of Congress, 
which declares that the State my by law provide for subse- 
quent appointment — LPtHe act of 1868 was not in force, 
the only provision in relation to filling such a vacancy was 
by a subsequent popular election. (Election law of 1872, 
section 24.) If the act of 1868 was in force, it only pro- 
vided for filling a vacancy occurring after the officer had been 
elected. So that, whether the act of 1868 was or was not 
in force, there was no law of the State which authorized 
the appointment in place of Levisee and Brewster, as to 
whom there had been a failure to elect. 

And therefore, in any event, two of the votes given by 
the Hayes electors must be rejected. 



38 



VII. 

The certificate and papers returned from the electoral 
college to the President of the Senate show that William 
P. Kellogg, as Governor, issued a certificate to himself, that 
he had been duly appointed an elector of that State. 

It is well settled by the English cases, that the king, 
although he is the fountain of honor and of office, cannot 
himself exercise an office to which he might make an appoint- 
ment. An appointment is like any other grant. And the 
same person cannot be grantor and grantee. Therefore an 
officer possessing the power of appointment cannot appoint 
himself, and a pretended appointment is void in such case. 

7 Bacon Abr., Title " Offices and Officers" p. 281. 

State v. Hoyt, 2 Oregon, 246. 

Peo. v. Thomas, 33 Barb. N. Y., 287. 

A sheriff cannot certify an excuse for his neglect, but must 
make his affidavit. 

Rex v. Bolton, Anstruther, 79. 

This rests upon the general principle of law that no offi- 
cer can exercise the functions of his office for his individual 
benefit. And whenever a sheriff is compelled to rely upon 
his own return, made upon process issued in a cause between 
other parties, such return is only prima facie evidence. 
2 Greenleaf's JSv., sec. 585. 

A distinction between the power of an officer to appoint 
himself to another office, and his power to issue a certificate 
which is conclusive evidence of such appointment, is too 
nice to be substantial. Therefore, to show that Kellogg 
was duly appointed elector, resort must be had to other 
evidence of the fact. At least resort may be had to other 
evidence to show that he was not duly appointed. The 
certificate of the Governor is the only evidence prescribed 
by act of Congress, and when, as in this instance, it is un- 
availing, inquiry may be made into the fact so certified 



39 

What is that fact ? Why, that Kellogg was duly appointed 
an elector. By law the appointment can only be made by 
a popular election. Therefore, the question is, was Kel- 
logg elected at the popular electiou in November last. This 
is the fact to be established ; the fact that may be con- 
troverted. 

VII. 

This bring us to consider what evidence back of the 
certificate must be resorted to to establish this fact. 

It will be said that the return of the canvassing or 
Returning Board is the next evidence to be considered, 
and is conclusive. 

I have already shown that the action of this board is 
void in rejecting votes, unless a case was really in each 
instance according to section 26 of the Election Law of 
1872; and that no such case was made in regard to any 
parish where the vote was excluded. 

It would not be pretended that a decision of the Su- 
preme Court of the United States would be of any avail 
unless accompanied by and attached to the complete re- 
cord of the cause in which such decision was made. 
Without such full authenticated record it would not appear 
that the court had jurisdiction. It would be monstrous to 
hold that stronger presumption exists in favor of a statu- 
tory tribunal than could be indulged towards the Su- 
preme Court of the United States. And it is submitted 
that to make the certificate of the Returning Board evi- 
dence at all, it must be shown that returns were made by 
the supervisors of registration, what these returns were, 
and, if the board rejected any such returns, that a case 
was made giving the board jurisdiction in that behalf. 

We submit at least that it may be shown affirmatively 
that such Returning Board did not give effect to the votes 
as cast ; and that no case was shown before them giving 
them jurisdiction to reject the votes. If we are wrong in 



1 



40 

this, then a fraud is as good as a fact; a judgment corum 
nonjudice is valid and conclusive against a party condemned; 
and our system of popular elections is a delusion and a 
snare. The voters of a State may cast all their votes for 
one man, and yet a Returning Board, without the slightest 
authority of law, may give their certificate to a person who 
did not receive a vote ; and that certificate is conclusive 
upon 40,000,000 of free people. 

Matt H. Carpenter, 

Of Counsel. 



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